“He never liked Washington — it’s a wonder he stayed so long”

Thus David Souter, Supreme Court Justice, appointed by George HW Bush in 1990, a New Hampshire Republican who quickly turned out to be on the liberal side, a boo-boo which soured Bush 41 for conservatives permanently — because they suspected he’d intended it all along.

Souter was sold to 41’s chief of staff John Sununu by New Hampshire senator Warren Rudman, who appears to have taken the opportunity to slip a liberal-minded Republican onto the bench.

The move has had momentous consequences for American society. Souter quickly moved in a more liberal direction — though, contrary to much opinion, supreme court decisions do not fall easily into a liberal-conservative spectrum — all the more so when Clarence Thomas was appointed to the court.

That gave the liberal bloc four votes and was the final nail in the coffin of the Republicans’ attempt to get a solid conservative majority on the bench. In one of the greatest blunders of all time, Reagan’s administration had put Anthony Kennedy on the bench, a compromise candidate after right-wing lunatic Robert Bork had been rejected by the Senate.

Kennedy, more acceptable, was also seen as a reliable right-winger. But no sooner had he ascended, than he became a total maverick, utterly unpredictable. When Souter was confirmed and subsequently moved to the left, the Republicans’ dreams of a 6-3 conservative majority were shot to pieces. Hence the fury.

Souter, as it turned out, was far more respectful of the notion of precedent than the GOP had believed. He was part of a school subsequently dubbed “rational minimalism” which argued that precedent — i.e. earlier court decisions principally — should not be overturned for anything other than their logic is so obviously flawed, or their prejudice so n-ked (such as the infamous Dred Scott decision which precipitated the civil war).

That put paid to any hope that he would overturn two key decisions that defined the culture wars — Roe vs. Wade of 1973, which established the right to have an abortion (grounded in the idea of an implicit right to bodily privacy in the constitution), and the 1940-something decision that outlawed prayer in government schools, which propelled the Christian right into politics in the first place.

By the late 90s, Souter was “in the tank” for the liberal side on most of the hot button issues, from gun laws to affirmative action. Had he been the conservative he was supposed to be, the US would be criss-crossed with states making abortion practically impossible by the imposition of a thousand petty laws, explicit Christian dogma would have returned to state schools and much more besides. His and Kennedy’s failure to be the reliable class warriors that others had imagined they would be, has probably been the right’s greatest defeat during the years from 1994 to 2006, when it dominated first Congress and then both that and the White House.

So how did it all happen? Souter has been called the last “Yankee Republican” and that’s probably true. “Yankee” here means New Englander, and the New England Republican tradition was very different from the paranoid-religious party the outfit has subsequently become. New England provided most of the support when Lincoln and others jumped out of the Whig party and started the Republicans — as a liberal party, opposed to slavery, supportive of small and limited government, but also secular and strongly supportive of the primacy of rights and the principle of church-state separation. Until the 1960s Vermont was the archetypal Yankee Republican state — the only place that never voted for FDR, not even in 1936.

Now of course Vermont will never vote Republican again — not in their current form. There is not a single Republican congressman or woman from New England. Imagine if the Liberals had no MPs south of Sydney on down to and through Melbourne to the bottom of Tasmania and you’ll see the predicament they’re in.

Demographic change is part of that, but not the whole story. Mostly, the Republican Party shifted underneath these people and their belief in individual rights and a secular public life came to be represented by the Democrats.

Souter, a lifelong bachelor — not a code for gay it seems, though it will probably turn out so, but the existing assumption is that he’s just a solitary type — was of that sort, a New Hampshire backwoodsman. Clearly the onslaught of state-based attempts to turn the US into a communalist theocracy that turned up at the Supreme Court’s door de facto pushed him into the liberal camp.

He has wanted to leave the court for at least two years, but was clearly waiting for the possibility of an Obama victory (or even a McCain victory) to vacate the seat.

There is no doubt that Obama will put up a liberal for the seat — indeed all his most immediate possibilities for replacement are liberals (Ruth Bader Ginsburg has a serious cancer, John Pauls Stevens (?) is 89, unless that sh-tbag Antonin Scalia chokes on a raviolus sometime soon.

The question is “how liberal”? Everyone is focused on possible female candidates, there being only one (Ginsburg) currently there. Dubya tried to appoint Harriet Myers, a white house intern, to the spot, but that didn’t work out and he couldn’t find any other women beholden to his machine, so let it lie.

Suggestions so far include Solicitor General Elena Kagan, Leah Ward Sears, chief justice in Georgia, and Sonia Sotomayer of New York, the latter highly favourable for being both female and Hispanic.

Obama is more likely to appoint a judicial moderate who is non-white-male than a more liberal type who’s white. The GOP will have no traction for blocking the appointment of a more impeccably centrist figure.

There is however a complex wrinkle. In order to go to the full Senate for confirmation, a candidate has to pass through the Senate judiciary committee — and that involves getting at least one vote from the minority party on the Committee.

Until very recently, that vote was, potentially, Arlen Specter, who is now of course a Democrat. So the remaining Republicans could well decide to be real pricks and hold the whole thing up.

It would be mad and counterproductive.

So, as I said, the remaining Republicans could well decide to be real pricks and hold the whole thing up.

But with Souter, a New Hampshire cincinnatus, going back to his broken-down old farmhouse for reading, fishing and hunting, the Republicans have to contemplate how they lost a man like that and how, though they once dominated the Northeast as the flocks of passenger pigeon darkened the skies there, they have met the same fate.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey